With Malice Toward None, With Amnesty for All: The Pardon of Robert E. Lee

WASHINGTON -- On Christmas Day 1868, President Andrew Johnson issued a proclamation granting "universal amnesty and pardon" to "every person who directly or indirectly participated in the late insurrection or rebellion."

Certainly this included Robert E. Lee, former commanding general of the Confederacy's famed Army of Northern Virginia.

So then why, in the summer of 1975, did President Gerald R. Ford cross the Potomac River to sit among Lee's descendants on the portico of the general's hilltop home? He was there, Ford explained, to right an old wrong. He chose that place, Arlington House, to sign a congressional resolution restoring "full rights of citizenship" to Virginia's native son. Then he handed a souvenir pen to 12-year-old Robert E. Lee V.

Ford spoke of Lee's labors to bind the nation's wounds after the Civil War -- even as contemporary America reeled from the April withdrawal of the last U.S. forces from Vietnam, ending another long, bitter conflict.

Was it really Lee who needed Ford's healing hand? Or was Lee, in fact, pardoned twice -- for reasons that had more to do with 1975 than 1865? "It is a good question," says Michael Hussey of the National Archives.

The search for an answer begins in the strange odyssey of Lee's amnesty oath.

Weeks after the war ended, Andrew Johnson invited high-ranking Confederates to apply for amnesty. Lee actively promoted reconciliation. He wanted to take Johnson up on his offer, but learned he had been indicted for treason. He believed he was protected by the "parole" granted as a condition of his April 9, 1865, surrender to Union Gen. Ulysses S. Grant. His old adversary threatened to resign if Johnson did not honor the parole. Johnson agreed, freeing Lee to seek amnesty.

In doing so, Lee signaled that "opposition to the government was at an end," Douglas Southall Freeman wrote in his landmark history. "No single act of his career aroused so much antagonism."

But Lee did not realize an oath was required of him. It wasn't until Oct. 2 that he went before a notary public and signed his name to this pledge:

"I, Robert E. Lee, of Lexington, Virginia, do solemnly swear, in the presence of Almighty God, that I will henceforth faithfully support, protect and defend the Constitution of the United States, and the Union of the States thereunder, and that I will, in like manner, abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves, so help me God."

The oath apparently was forwarded to Secretary of State William H. Seward. Then it disappeared from history. Did Johnson see it? Was it misplaced? Suppressed? No one knows. One thing is certain: Lee's request for an individual pardon was never acted upon.

Lee did not press the matter. He was resigned to "procrastination in measures of relief," as he wrote his son, Fitzhugh. But relief did come -- on Dec. 25, 1868, with Johnson's universal amnesty, making Lee's appeal moot.

Only one restriction remained, from the 14th Amendment ratified in July 1868. Any Confederate who had sworn before the war to uphold the Constitution was barred from holding federal or state office. That included Lee, a former officer in the U.S. Army.

Lee died Oct. 12, 1870, at age 63.

Almost 100 years later, an old grievance surfaced -- along with Lee's long-lost oath.

Inspired by the Civil War centennial, an archivist named Elmer O. Parker, began looking for Lee's oath. This great-grandson of Confederate soldiers located the document in a cardboard box among State Department files in the National Archives -- under "Virginia" and "L" for Lee. "Exactly where it was supposed to be," Hussey says. "But no one had thought to look for it."

His find might have been a footnote to Lee's story -- after all, historians already knew that Lee had applied for amnesty. Instead, it stoked a stubborn misconception.

"General Lee died a man without a country," the Richmond News Leader protested early in 1975. The sentiment was repeated in news coverage of Ford's visit to Arlington House, and persists today.

If Lee believed this, it would be news to his biographer Emory M. Thomas and to scholars at the Museum of the Confederacy in Richmond. All Ford actually corrected -- posthumously -- was Lee's right to hold political office, something Congress had restored to former Confederates in 1898.

This was about symbolism. But for whose war?

In July 1975 -- when Congress took up the Lee resolution -- the United States was confronting its failures in Vietnam, with the bicentennial of the American Revolution -- heralded as a unifying event -- just months away.

Listen to Michigan Democrat John Conyers, addressing his colleagues from the floor of the House: "I would suggest to the members that until amnesty is granted to, and full rights of citizenship are restored to, those young Americans who, according to their consciences, resisted the ignoble war in Indochina, this resolution will be neither healing nor charitable."

Another Democrat, Joshua Eilberg of Pennsylvania, countered that the Bicentennial Congress should demonstrate "how we as Americans once divided can learn from our historic past and once again reunite when it is in our nation's interest."

The vote was overwhelmingly in favor. And so the nation's leaders looked to Robert E. Lee and the distant past for reconciliation and peace not yet realized in their own time.

X X X

A sampling of the billions of artifacts and documents in the National Archives is on view in the Public Vaults exhibit. On the Web, go to www.archives.gov and click on "National Archives Experience," then "Public Vaults."

Oct. 14, 2005

(Delia M. Rios can be contacted at delia.rios@newhouse.com.)

When it comes to discussion about the Civil War, I do my best not to question anyone's qualifications. First, they're almost invariably superior to mine, and second, for every "fact" stated in a dozen books, other Freepers on the other side of a discussion will cite a "fact" stated in a different dozen books. It may be the most discussed, most analyzed, most painful war of our Nation's history -- but it still leaves the most room for disagreement, different interpretations, multiple attributions of purpose, etc.

You know, I've only been a member of Free Republic since 1998, but the thought is beginning to creep into my mind that postings about the reasons for the Civil War -- or attempts to remove the names of Confederate officers from public buildings, or any other topic related to the Civil War, sometimes (just sometimes) results in disagreement among Freepers.

With a little research (which I'm too lazy to do today), I'm certain I could find the text of Lee's oath at West Point. I'm not immediately swayed by the idea posted by others here that the dissolution (or attempted dissolution, take your pick) of the Union freed him from that oath.

If I took an oath to help my in-laws financially in their old age, after they paid for my college degree and training, then I'd feel bound by that oath even if I got divorced and they were no longer my in-laws.

It make take a Clintonian parsing of Lee's oath at West Point to claim that he was no longer bound by it once Virginia succeeded. It may, or perhaps given a reading of it and an understanding of the importance of States vis-a-vis the Federal government back then, maybe Lee wasn't bound. The arguments posted by others above, however, don't sway me.

Then again, I may just be totally misguided. The great thing about posting to any of these Civil War threads is that a significant number posters will think you totally misguided no matter what.

. . . and don't even ask get me started about the Assistant Scoutmaster who would try, on a weekly basis, to post an editorial or website "proving" that use of the Conferate battle flag on Georgia's state flag was in no way meant to be racist, in defiance of civil rights, or otherwise offensive to Blacks. I took them down weekly for two years, pointing out that the Troop's bulletin board wasn't used for those purposes and contained no political content. He said these weren't political -- they were patriotic. He seemed to think that the most important thing a Boy Scout could learn was that they should proudly fly the Conferate battle flag from every bumper sticker, t-shirt, tackle box, dog bandana, mailbox, and other vertical or horizontal surface.

Winning the Revolution and delivering the infant republic was only part of Washington's legacy. Guiding and protecting that infant through the dangerous early years was Washington's most significant accomplishment. Washington, to the day he died, always put that infant nation first.

I have found some aspects of the early years of the United States of America totally fascinating. For obvious reasons the Civil War is seen as the nation's most dire period of time in terms of national unity, and many of the issues discussed in national politics today focus on "the intent of the founders" in Constitutional terms. But I could make a very strong case that the United States as envisioned by the founders didn't even last for five years.

All of the founders' notions of independence, self-rule and Constitutional rights went out the window when the Federal government imposed a tax on whiskey in the early 1790s. This (along with a number of other issues) eventually culminated in the Whiskey Rebellion in western Pennsylvania in 1794. Settlers in the sparsely-populated Appalachian highlands had to cope with poor crop yields, and so it was more lucrative for them to distill their corn into whiskey than to incur the cost of transporting it over the rugged terrain to the East Coast. The imposition of that whiskey tax was a blatant abuse of Federal power (which was enacted simply because the people who were most affected by it had the least influence in government), and it resulted in a serious sense of disaffection along the frontier that remains even to this day (numerous "Run, Eric, Run!" signs could be found all over parts of western North Carolina when Federal ATF agents spent years looking for suspected abortion clinic and Atlanta Olympic bomber Eric Rudolph).

The Whiskey Rebellion eventually ended in the fall of 1794 when Washington gathered a Federal militia to quell the uprising. The Federal troops were gathered from eastern Pennsylvania, Virginia, Maryland, and New Jersey . . . and they were led by a gentleman named Harry Lee.

That's General Harry Lee, the Governor of Virginia -- and father of Robert E. Lee.

SCOTUS held PRIOR to the war that property - even property belonging to the enemy - cannot simply be siezed. Lincoln himself considered slaves property - overturning military emancipation orders to the contrary. Yankees considered them property when they sailed the oceans to 'purchase' slaves from tribal leaders, and then 'sold' them here.

The reference to post bellum cases was to demonstrate the the Constitution cannot be suspended.

And 'Johnny Reb' removed himself from constitutional protections, it was the unionists that deemed them to continue to be members of the union. All we wanted was to separate ourselves from insane lunatics heck-bent on the subjugation of the South and against the right to self-government.

"But are they obligated to remain?"

An obligation to remain in the Union might be via a promise. There were no promises.

An obligation might be legal, but to be legal there had to be a specific law against secession. There was no law.

An obligation might be coerced, but the Constitution named no controlling legal authority.

Remember that Massachusetts was preparing to secede in 1814. The Massachusetts state political leadership believed it was a decision that remained in their hands.

At the time of the approval of the US Constitution, several states, one being New York, specifically announced to the other states that they reserved the right to secede if they so chose.

Since so many believed that the right to secede was inherent in their freedoms, there was no need for a specific process of "proper" secession.

All of the states of the Confederacy, following the example of their forefathers in 1776 issued a formal secession decree and went on to install their local leaders, congressmen, judges, and other officers.

And they adopted their own version of the Constitution.

DiLorenzo has put quite a bit of research into his book, and certainly has quite a bit more PRIMARY EVIDENCE (i.e., newspaper articles from BOTH the North and the South, from the TIME PERIOD) in his book than anything Al Franken and company would provide. Ever.

Try this one. Go see the latest George Clooney movie and give us the definitive report on the history of the McCarthy hearings. That would be the same as relying on Dilorenzo for Lincoln's history. But Clooney will make a lot of money, and many will believe what they see on film is what really happened.

Lee's oath:

I, [Robert E. Lee], do solemnly swear or affirm (as the case may be) to bear true faith and allegiance to the United States of America, and to serve them honestly and faithfully against all their enemies or opposers whomsoever, and to observe and obey the orders of the president of the United States of America, and the orders of the officers appointed over me, according to the rules and articles of war.'

His oath was first and foremost to the several states of the union, his state being one of them. His resignation was accepted by the US government. In addition, the oath states nothing about perpetuity, or that he was obligated to wage war against his state and family.

Would you?

"And I suppose that the secessions were recognized, otherwise, they wouldn't have been required to be readmitted."

'Recognized' is a problematical word. The Union government stated that there were several states in secession. President Buchanan and his Attorney General stated that and went on to say that they did not think secession legal, but had no authority to address it.

"So, on a very simplistic level, the Confederate States left the United States, and the Union army forced them back."

You could say that, but inherent in that construct is that the Union Army was directed by the President to coerce the Confederacy.

And the Union, with all its vast resources, modern industrialization, standing Army and Navy, large banking houses, massive shipping systems, large population employment, productive Midwest farming systems, was influenced to risk the stability of all of this by instituting a Naval blockade and initiating a major ground war against an agrarian society.

Where is the sense of that?

Dilorenzo is a Libertarian zealot who found a profitable little niche with Crown Rights book club. No distortion is too low for him or his gullible fans. If he floats your boat, you are obviously not interested in understanding US history. Try this one. Go see the latest George Clooney movie and give us the definitive report on the history of the McCarthy hearings. That would be the same as relying on Dilorenzo for Lincoln's history. But Clooney will make a lot of money, and many will believe what they see on film is what really happened.

I'm sure that anyone with half a brain who lines up the facts presented by Clooney et. al. will be able to figure out pretty quickly that the movie is complete garbage; and yes, those who are intent on drinking kool-aid will inevitably accept it at face value.

But back to DiLorenzo, and any other book which references primary evidence for purposes other than entertainment, could you at least illustrate for me some of your arguments against the evidence he's collected, or at the least, present historic arguments as to why it's quote-unquote "full of it?"

I mean, to what would you respond to:

Lincoln's suspension of the writ of habeus corpus for all who dared to print disagreements with his policy?
The militarization of Maryland, and the subsequent arrest of the lawfully-elected legislature of the same?
The importation of German mercenaries with the intent to use them to terrorize regions of the South?
The seizure of arms purchased with SOUTHERN money, explicitly for the purpose of attacking said SOUTHERN states?

I mean, even the most ardent defender of the Union must have valid reasons why these gross abuses of power were committed, right? To me, they sound much like the same tactics employed by the British during our Revolutionary war, which we were in the RIGHT to fight, no?

(No, I'm not defending slavery. Yes, the South was wrong to continue it. No, you can't argue the past in terms of the present without mangling things completely.)

Hope this makes sense. I eagerly await your reply.

Regards,
~dT~

But the slaves were not "siezed" (sic). They were freed. No one rounded them up as war booty.

All we wanted was to separate ourselves from insane lunatics heck-bent on the subjugation of the South and against the right to self-government.

What "we"? Are you really 180 years old? And doesn't it ever curdle in your mouth to utter "right to self-government" when that is exactly what was denied to a huge segment of the South's people, and "subjugation of the South", when subjugation was the basis of the South's wealth and society?

Several years earlier, before the Constitution, Shay's Rebellion convinced the majority of the founders that a more powerful national government was necessary if the nation was to survive. The "Militia Act" was passed by the first congress even before the Whiskey Rebellion began with the realization that without an enforcement mechanism, small, dissatisfied segments of the population could easily thwart the legitimate and constitutionally enacted will of the majority.

If people can ignore any law at will, no laws are valid. I suppose to a radical libertarian, that's fine, but in the real-world, that is a recipe for disaster.

The Founders, and the Framers of the Constitution were indeed idealists and did believe in self government. But they were not dopey Utopians. They were realists and they knew that not every decision made regardless of how tightly it followed their idealistic principles, could please every segment of society. Most laws, then and now, displease some segment. Without the power to enforce the laws as written by congress, the entire Constitution was meaningless and the very idea of self-rule was also meaningless.

In the 1790s, the "old-world" fully expected the United States to fall into chaos and disorder due to its democratic principles. We didn't, thanks to the pragmatism of our leaders. Enforcing just laws is not losing freedom. It preserves freedom.

Lee led a noble cause, fighting for at least part of the Republic to be governed as the Framers designed it. I consider Robert E. Lee to be one of the greatest men this nation of states has ever seen. God bless his memory

Thank you for this fine sentiment.

I am a longterm resident of Virginia, and one who has always held Marse Robert as a Hero. While some may get themselves ensnared in the muck and mire of the slavery question, I have always seen the Confederate cause as one devoted to maintaining the original intent of the Framers - that of a limited Federal government with very specific tasks to perform (treaties, commerce, etc.). It pains me to see just how far this country has strayed from its original design. The concepts of Federalized welfare, the IRS, et. al. all stem from the South's defeat - and we are worse for it.

God Bless General Lee - INDEED!

If people can ignore any law at will, no laws are valid. I suppose to a radical libertarian, that's fine, but in the real-world, that is a recipe for disaster. The Founders, and the Framers of the Constitution were indeed idealists and did believe in self government. But they were not dopey Utopians. They were realists and they knew that not every decision made regardless of how tightly it followed their idealistic principles, could please every segment of society. Most laws, then and now, displease some segment. Without the power to enforce the laws as written by congress, the entire Constitution was meaningless and the very idea of self-rule was also meaningless. In the 1790s, the "old-world" fully expected the United States to fall into chaos and disorder due to its democratic principles. We didn't, thanks to the pragmatism of our leaders. Enforcing just laws is not losing freedom. It preserves freedom.

This is an interesting argument, and I agree w/ your sentiments 100%. The Law should be followed AS WRITTEN (not as interpreted by a judge). "Lex Rex" and all.

(I will insert as an aside, much of the "sectional hostility" which arose prior to secession was related to laws which were passed in Congress providing for the return of "fugitive slaves" to their owners. These laws, enacted by a "reasonable majority," were in fact being ignored by the Northern states, to the chagrin of the Southern. Does that make the Northern states anarchists? Do the "ends" of their actions justify the "means" they used to accomplish them? Perhaps a simple answer isn't possible in this scenario...)

We did rebel against Britain over what amounted to an "overbearing" 13% tax, did we not?

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